Azaria, Danai; Davenport, Tara; (2020) Interim Report, International Law Association, Committee on Submarine Cables and Pipelines in International Law. International Law Association: London, UK.

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Abstract

The international legal regime governing submarine telecommunication and power cables and oil and gas pipelines established by the United Nations Convention on the Law of the Sea of 1982 (LOSC) (and other conventions), and the implementation of States’ rights and obligations concerning submarine cables and pipelines do not address the myriad of challenges that States, and cable and pipeline companies currently face in the development of policies relating to submarine cables and pipelines. Some of these challenges include how to address the impact of competing ocean activities such as shipping, fishing, oil and gas activities, seabed mining, and other new or emerging uses of the oceans on activities relating to submarine cables and pipelines (and vice versa); increasing coastal State regulation of cable and pipeline activities in a manner that may be inconsistent with the LOSC; the interaction between submarine cables and pipelines activities and the protection of the marine environment; and the need to protect submarine cables and pipelines from a variety of threats, including natural hazards, accidental and intentional damage. These challenges are compounded by the fact that under the LOSC and customary international law, State jurisdiction provides the principal way of maintaining legal order over activities at sea whereas submarine cables and pipelines are (a) often owned by private companies or consortia, the individual members of which may be incorporated in several different States; (b) are laid in maritime zones within and beyond national jurisdiction; and (c) multiple non-State entities are often involved in different activities relating to submarine cables and pipelines (for instance, the company that lays a cable or pipeline may differ from the one that owns the cable or pipeline; or a company that owns a cable or pipeline may differ from the one that maintains and operates it). In its Interim Report, the ILA Committee lays the foundations for the analysis of these issues, by addressing issues of definitions of activities in relation to cables and pipelines and their regulation under different provisions of LOSC; who is the holder of rights under LOSC provisions concerning cables and pipelines (States or individuals); the meaning and content of the obligation of 'due regard' in relation to different activities at sea in relation to cables and pipelines. The Report is structured on the basis of each LOSC provision referring to cables and pipelines and analyses the LOSC preparatory works, literature, international case law, as well as State practice, and adopts some preliminary conclusions about the law in this field and identifies gaps for further analysis.

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